What's 'Fair Use'? Shepard Fairey Case

Campaigning for office is First Amendment protected speech in a way that advertising isn't, so it isn't necessarily clear that the usage is commercial. A town may have an ordinance restricting door-to-door sales, for instance, but it may not restrict political canvassing or campaigning for office door-to-door. Zoning ordinances may prohibit commercial signage in residential areas, but not campaign signage.

How this applies to the issues of copyright and fair use is another question, however.

Good artists are able to take old ideas, digest them, and bring new life and ideas to them.

After reading about Fairey, I'm reminded of a movie from the 80s called "The Re-Animator", in which a med-school student discovers how to bring the dead back to life.

With Fairey, I feel he should be called the "Re-Gurgitator" as he simple takes old ideas, swallows them whole and spits them back out with a bit of his crud added to them...

David A. Goldfarb said:

satire or parody, and that kind of recontextualization is how parody works.... Fairey's satire is superficial, because it partakes of the commercialism that it purports to critique, but those are different objections than that of plagiarism.

Click to expand...

Satire, parody, and critique are valid defenses against infringement charges, as established by important court precedents. It is how art usually justifies, ahem, appropriation. Merely being art is not sufficient defense. But the artist has to demonstrate (when challenged) that the art actually meets these standards. I think in this case, Fairey will not.

Personally, I think it's a great piece of work or "art" much like the Che work done years ago. In fact the Che work took a boring photograph and turned it into an iconic work of art, in fact one of the best and most recognized in the 20th Century.

The Obama work does much the same thing. Only history can say how iconic.

I'm not sure of all the facts of how it was originally used but I think it was as a sort of grassroots political poster plastered everywhere and not an "art piece" for sale. (not sure on that)

If it was a political poster emotionally stating the hope that many felt at the time as the Bush Administration and the Republicans were going down, then it was merely using a news picture that had no real artistic value and would probably never see the light of day again and then "artistically" reborn as an "Che like" symbol of a policital and social movement, then I think it should be fair game.

Additionally if Fairey then took the popularity of the poster and made limited edition prints of it, it could be argued he took political pop art now in the public consciousness, and took it up a notch to sell as an example of popular culture.

While it would be hard to argue that it was not taken from that photograph, it is hard to argue that they are the same picture. Fairey's poster transcends the photograph by such a degree that in my opinion it should stand as it's own creation.

On top of that it was a news photograph, by definition not needing a "release" from the subject and AP and the photographer were making money off it and not sharing with the subject. I think it disengenuios to start crying and wanting compensation for a picture that costs the photographer nothing, when someone takes that picture and transcends it to a new level.

Additionally, the photographer can show no injury in this case, no loss of income, no downside what-so-ever from this work of art being created.

I'm sure many will disagree with me and ask how I'd like my work copied in this manner but transcendental art copied from an original probably needs to be argued on a case by case basis, and this is one for the courts. Forget the slippery slope arguments, just decide each case on the merits.

Michael

blansky said:

I'm sure many will disagree with me [...]

Click to expand...

Most here already have.

In my little world, I'm gagging on the intentional subterfuge, the lies.

If he stood up like he had a pair in the beginning, I might be more supportive. I have trouble supporting eunuchs.

I agree with Blansky's general read, except for the claim that Korda's photograph of Che was boring. Here's an article about Korda with links to his photographs of Che and a sidebar about the uses of the iconic photograph--

http://www.arthistoryarchive.com/arthistory/photography/Alberto-Korda.html

I think the Che poster distills something that's already uniquely in Korda's photograph. Fairey's "Hope" poster takes a routine photograph that is almost identical to at least one photograph taken by another photographer at the same time and transforms it into something completely different.

To me it is mainly a piece of propaganda. This is what cheapens it to my eyes.
I admire far better his earliest work rather than this kind of "blind faith" visual manifesto.

Domenico Foschi said:

To me it is mainly a piece of propaganda. This is what cheapens it to my eyes.
I admire far better his earliest work rather than this kind of "blind faith" visual manifesto.

Click to expand...

That's interesting, because to me the "propaganda" aspect of it is what makes it.

Regardless of your political beliefs, I think the "hope" part which is what I guess you probably object to, takes it to the realm of sort of pop culture art. Otherwise to me just the face alone doesn't do too much.

Michael

Well there we are then:
The image alone is bland, and doesn't amount to much.
The addition of the text does little more than turn it into an advertisment.
The thing is all too flimsy.

blansky said:

That's interesting, because to me the "propaganda" aspect of it is what makes it.

Regardless of your political beliefs, I think the "hope" part which is what I guess you probably object to, takes it to the realm of sort of pop culture art. Otherwise to me just the face alone doesn't do too much.

Michael

Click to expand...

That's not it, Michael.
What makes it look cheap, formulaic and propagandistic in the directions of most portrayals of political leaders is the largest than life rendition, shot from below to suggest heroism. It idolized the man when all we knew about him were his excellent oratorical skills.

The problem I am having is that the work is an artistic illustration, not a alternative type of photo per se. Meaning it's not as if the original photo was coverted to a monochromatic litho high contrast image and still remained as a photo. I can see the argument as a "derivitive work" but with other factors involved such as it being strictly an artistic illustration, not a photo illustration. Seems to me it is a infringement to a degree. Compare the situation to the Pizzetti vs Liebowitz matter.

Domenico Foschi said:

It idolized the man when all we knew about him were his excellent oratorical skills.

Click to expand...

Oh you're really gonna get the Obamaphiles going with this one ... you mean you didn't drink the Kool Aid? They gave him a Nobel Prize, you know, for public speaking. Any way I am digressing from my own thread. Carry on.

Regards, Art.

gr82bart said:

Oh you're really gonna get the Obamaphiles going with this one ... you mean you didn't drink the Kool Aid? They gave him a Nobel Prize, you know, for public speaking. Any way I am digressing from my own thread. Carry on.

Regards, Art.

Click to expand...

Actually Art, your the guy around here that seems to go on about him the most..,

Domenico Foschi said:

That's not it, Michael.
What makes it look cheap, formulaic and propagandistic in the directions of most portrayals of political leaders is the largest than life rendition, shot from below to suggest heroism. It idolized the man when all we knew about him were his excellent oratorical skills.

Click to expand...

I think we have to try to separate here, the political from the "art" part. I get the feeling that a large part of your negativity, is that you aren't particularly an Obama fan, which is clouding your argument about the "copying" or art part of the question.

In fact I get that from a lot of the people posting here. I guess it is hard to separate the two, but whether you like or dislike him should not really be a part of the discussion.

My previous argument about the political part of the discussion had to do with the popular culture part. It was not about whether I agreed with the political direction that the art was trying to make. In other words I like the Che poster for its own sake, not about whether I think communism or socialism is a good thing to strive for.

I believe you are trying to read between the lines when there is nothing to read.
The work is flattering. The man had never met (and I think he hasn't met yet) Obama, so what really comes out of that image is an idolized representation of the political figure.
If I like or I don't like Obama or his direction is not the point here. The point here is that this is not honest work because it flatters. It is wishful thinking.
This is my position on the subject and I do not understand your effort to try to convince me.
I find it a bit arrogant on your side to think that you are seeing the issue under the right perspective and I am not.

Domenico Foschi said:

I believe you are trying to read between the lines when there is nothing to read.
The work is flattering. The man had never met (and I think he hasn't met yet) Obama, so what really comes out of that image is an idolized representation of the political figure.
If I like or I don't like Obama or his direction is not the point here. The point here is that this is not honest work because it flatters. It is wishful thinking.
This is my position on the subject and I do not understand your effort to try to convince me.
I find it a bit arrogant on your side to think that you are seeing the issue under the right perspective and I am not.

Click to expand...

I don't think there is a "right" perspective. I was merely arguing that it seemed that your opinion, was more about your feeling about the political aspects that the artistic ones.

If I mis-read your comments, I apologise.


Michael

blansky said:

I don't think there is a "right" perspective. I was merely arguing that it seemed that your opinion, was more about your feeling about the political aspects that the artistic ones.

If I mis-read your comments, I apologise.


Michael

Click to expand...

Nowhere I wrote criticism toward Obama, neither implied anything negative about him.
Anyway, all is well here in SoCal and I hope it's the same in north part of the neighborhood.

blansky said:

While it would be hard to argue that it was not taken from that photograph, it is hard to argue that they are the same picture. Fairey's poster transcends the photograph by such a degree that in my opinion it should stand as it's own creation.

Click to expand...

It would still be a "derivative work" within the meaning of copyright law. How creative or iconic it is is irrelevant. The law doesn't care about that stuff. All it cares about is whether the new work is based on the old work, and whether use of the old work falls under an allowable category. It would be no different from a film made from a book--the film may be a good movie that stands on its own as a work of art, may be very different from the book that inspired it, but it is still derived from the book and has to be licensed. (For example, the film Blade Runner has very few elements in common with the novel Do Androids Dream of Electric Sheep, develops the philosophical themes in a different direction, but still counts as a derivative work.)